Citation Nr: 0315513
Decision Date: 07/10/03 Archive Date: 07/17/03
DOCKET NO. 98-04 114 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to an increased rating for residuals of a right
ankle sprain, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Michael Holincheck, Counsel
INTRODUCTION
The veteran served on active duty from August 1966 to August
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1980 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York. The veteran's case was remanded for
additional development in July 2000. The case is again
before the Board for appellate review.
FINDING OF FACT
The veteran's right ankle disability is manifested by
functional impairments that equate to no more than moderate
limitation of motion.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 10 percent for
right ankle disability have not been met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a,
Diagnostic Code 5271 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Background
The veteran served on active duty from August 1966 to August
1969. A review of his service medical records (SMRs) for
that period reveals that the veteran was treated for a sprain
of the right ankle in October 1966. He was treated for
another right ankle sprain in October 1967. There was no
evidence of a fracture for either instance.
The veteran submitted his original claim for service
connection for a right ankle disability in May 1973. At that
time he claimed that he had suffered a fracture of the right
ankle in service.
The veteran was afforded a VA examination in September 1973.
The physical findings were reported to show tenderness over
the lateral side of the junction of the metatarsals and
tarsal. There was no loss of motion, no effusion and no
crepitus. An x-ray of the right ankle was interpreted to
show no evidence of fracture, dislocation or any other bone
or joint deformity. The assessment was that the right ankle
was negative for bone pathology.
The veteran was granted service connection for residuals of a
right ankle sprain in October 1973. He was assigned a
noncompensable disability rating.
The veteran submitted his current claim for an increased
rating in February 1980. The veteran said that his right
ankle had become progressively more uncomfortable to stand
and work on and that it would stiffen up while driving. He
said he had received treatment at the VA medical center
(VAMC) in Northport, New York. The veteran claimed to have
fractured his ankle twice in service.
Outpatient treatment records from VAMC Northport were
associated with the claims file. The records documented
evaluation of the veteran's complaints regarding his right
ankle from October 1979 to February 1980. The veteran was
initially seen in October 1979 for complaints of right ankle
pain. A December 1979 orthopedic consultation noted that
stress x-rays of the right ankle were within normal limits.
There was deep tenderness of the outer aspect of the ankle.
A January 1980 entry recommended the use of an insole to help
provide stability for the veteran's ankle.
The veteran's claim was denied in June 1980 with notice of
the denial provided in August 1980.
The veteran testified at a hearing at the RO in April 1981.
The veteran testified that he wore inserts in his shoes to
aid in the stability of his ankle. He said he would
experience pain in the ankle that felt like a knife going up
his leg. The ankle would stiffen up on him and he
occasionally had difficulty sleeping because of the pain.
The veteran related that he was a schoolteacher and spent
most of his day on his feet. He would experience some
swelling in the ankle by the end of the day. The veteran
described an incident in January 1981 where his ankle gave
way and caused him to fall. The veteran testified that he
did not miss any work because of his ankle. He said he would
always work through any pain because he felt he owed that to
his students. The veteran did say that he felt that he had
lost income because of his right ankle problems because he
could no longer participate in bowling or softball leagues
that would award money at the end of the year.
Records from Lydia Hall Hospital were received in May 1981.
The records documented an emergency room visit by the veteran
for treatment of a right ankle sprain in January 1981. X-
rays at the time were interpreted to show the ankle mortise
intact. There was considerable soft tissue swelling. A
small, calcified density related to the inferior margin of
the fibula was present. The interpretation was chronic
changes with soft tissue swelling with no recent fracture.
The veteran was afforded a VA examination in August 1981.
The physical examination revealed a full range of motion with
no crepitation or swelling. There was no evidence of
ligamentous instability at the time of the examination.
Additional stress x-rays were recommended but the veteran did
not complete that part of the examination.
The veteran's claim was inactive until he wrote to the RO in
October 1996 regarding a claim for benefits relating to
exposure to herbicides in Vietnam. His appeal was again
addressed by the RO.
The veteran was afforded VA examinations in January 1997 in
conjunction with his claim for benefits related to herbicide
exposure. There were no findings pertinent to the issue on
appeal.
The veteran was afforded a VA orthopedic examination in June
1997. The veteran said that he fractured his right ankle in
service and was casted for 4-6 weeks. The veteran said that
he experienced persistent weakness, and lateral instability
involving the ankle and some periodic giving way after the
injury. He originally sought treatment at the Northport VAMC
where he said doctors discussed possible surgery for his
ankle. He said that he decided against the surgery and had
not had any additional treatment since that time. The
veteran's current complaints consisted of pain, instability,
and occasional buckling of the ankle. He was not taking any
medications for the pain. The examiner reported that the
veteran had full dorsiflexion, planar flexion, inversion and
eversion in both ankles. The veteran complained of pain with
full ranges of motion of the right ankle. There was some
tenderness to palpation over the right ankle at the
anterolateral aspect and there was some slight swelling of
the right ankle. There was no crepitus. An x-ray of the
right ankle was interpreted to show a small ossific density
adjacent to the medial malleolus that might represent an old
fracture. There was no evidence of acute fracture,
dislocation, osteoarthritic change, or significant soft
tissue swelling. The examiner's assessment was a history of
right ankle fracture. In regard to functional loss due to
pain, the examiner opined that the veteran's pain in the
right ankle was of greater significance than the pain in his
left elbow.
The veteran's disability rating for his right ankle
disability was increased to 10 percent by way of a rating
decision dated in January 1998.
The veteran's case was remanded by the Board for additional
development in July 2000. The veteran was to be allowed to
supplement the record with any additional evidence he had to
present. Further, the veteran was to be afforded a new VA
examination to assess the current status of his service-
connected right ankle disability.
The RO wrote to the veteran in August 2000 and asked that he
identify any sources of treatment for his right ankle since
June 1997. He was also requested to complete the necessary
authorization forms to allow the RO to obtain any records
identified by the veteran. There is no indication in the
claims file that the veteran responded to the RO's request.
The RO obtained a copy of the June 1997 x-ray report
regarding studies of the veteran's right ankle. This action
was directed by the July 2000 Board remand.
The veteran was afforded a VA orthopedic examination in March
2003. The examiner noted that the veteran said that VA had
not followed him for his right ankle since his earlier
evaluations. The veteran also did not take any medications
for his right ankle pain. The veteran said that his level of
pain was intermittently between 4 and 6 on a scale of 10. He
said that he experienced occasional swelling and a feeling of
instability or giving away. He also said that he experienced
fatigability at times. He said that he could not run. The
veteran related that his right ankle pain was weather-
related, especially to coldness, but only occasionally. He
said that he experienced periodic flare-ups when walking over
cracks in the sidewalk or stepping on a pebble. The veteran
said that when he would twist his ankle, it was usually an
inversion injury and could be severe with swelling and pain.
The veteran said that he would "deal with it" at the times
he experienced problems. He would use ice and elevation to
treat any swelling. The veteran said that he had used
orthotics since 1999 and that they had helped. His current
shoes were examined and noted to have a lateral stabilizer
built in. The examiner could not identify any particular
wear abnormalities.
The examiner reported that there was no loss of muscle
strength. The range of motion for the ankles, measured
passively, produced no pain during the examination. The
veteran was noted to have 8 degrees of dorsiflexion on the
right compared to 10 degrees on the left. There was plantar
flexion to 40 degrees on the right and left. Active range of
motion was measured as 5 degrees of dorsiflexion on the right
and left ankles. Plantar flexion was to 30 degrees
bilaterally. Inversion and eversion of the right ankle
created pain at about 5 degrees. There were no sensory
changes. The veteran was found to have normal reflexes and
there were no vascular abnormalities noted. The examiner
noted that x-rays of the right ankle showed a normal ankle
mortise. There was an ossification noted below the tip of
the medial malleolus in what appeared to be the deltoid
ligament of minor substance and extent. The final diagnosis
was status-post chronic recurrent ankle sprain, inversion
type.
The examiner provided an addendum to the report in March
2003. The examiner was asked to express an opinion on
whether the functional disability expressed by the veteran
was best equated with moderate or marked limitation of
motion. The examiner said that it would be minimal to
moderate limitation of motion.
II. Analysis
Disability evaluations are determined by the application of a
schedule of ratings that is based, as far as can practicably
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2002). Each
service-connected disability is rated on the basis of
specific criteria identified by Diagnostic Codes. 38 C.F.R.
§ 4.27 (2002). Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2002).
The veteran's right ankle disability has been rated under
Diagnostic Code 5271, which pertains to limitation of motion
of the ankle. 38 C.F.R. § 4.71a (2002). The veteran is
currently rated as 10 percent disabled. Under Diagnostic
Code 5271, a 10 percent rating is applicable where there is
moderate limitation of motion. A 20 percent rating is for
consideration where there is marked limitation of motion. In
evaluating range of motion values for the left ankle, the
Board notes that the standard range of motion of the ankle is
dorsiflexion from 0 to 20 degrees, and plantar flexion from 0
to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2002).
The veteran has related that he believed he fractured his
ankle in service. In evaluating the evidence of record the
Board notes that the SMRs do not show any fracture. The
several x-rays of the right ankle do not show evidence of a
fracture in service, or after. There is no x-ray or clinical
evidence of arthritis.
The veteran has had consistent complaints of right ankle
pain, feelings of weakness and giving away, fatigability and
occasional swelling. He has not sought any treatment in the
intervening years and has used ice and elevation to provide
primary relief of his symptoms. The veteran was noted to
have a full range of motion at the time of his August 1981
and June 1997 VA examinations. The March 2003 examiner noted
a decrease in both dorsiflexion and plantar flexion of the
right ankle that he said represented mild to moderate
limitation of motion.
The results of the several VA examinations do not reflect a
disability greater than the current 10 percent rating for the
veteran's moderate limitation of motion of the right ankle.
The veteran's claim for an increased rating for residuals a
right ankle sprain is denied. Even with consideration of all
functional impairments complained of by the veteran, the most
recent VA examiner determined that his disability was equal
to minimal to moderate limitation of motion.
The Board has also considered other diagnostic codes for
possible application. However, there is no evidence of flat
feet, claw foot, malunion or nonunion of the metatarsal
bones, or a moderately severe foot injury to warrant the
assignment of a 20 percent rating under Diagnostic Code 5276,
5278, 5283, or 5284. 38 C.F.R. § 4.71a.
When an evaluation of a disability is based on limitation of
motion, the Board must also consider, in conjunction with the
otherwise applicable diagnostic code, any additional
functional loss the veteran may have sustained by virtue of
other factors as described in 38 C.F.R. §§ 4.40 and 4.45.
DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors
include more or less movement than normal, weakened movement,
excess fatigability, incoordination, pain on movement,
swelling, and deformity or atrophy of disuse.
In this case, the veteran's right ankle disability was
increased to 10 percent based on the above factors in January
1998, as a compensable rating was not warranted for
limitation of motion at that time. It was noted that the
veteran experienced chronic pain, stiffness, instability and
swelling. He has continued to complain of these same
symptoms. He was also noted at the time of his June 1997 and
March 2003 examinations to complain of pain on the extremes
of motion. The Board finds that the veteran's symptomatology
is contemplated in his current 10 percent disability rating.
His symptoms overall suggest "moderate" disability. The
terms "moderate" and "marked" are not defined in Diagnostic
Code 5271, but it should be noted that the 20 percent rating
for "marked" disability is the highest rating for limitation
of motion of the ankle. It is also the rating to be assigned
for ankylosis in plantar flexion less than 30 degrees, or for
ankylosis of the subastragalar or tarsal joint in poor
weight-bearing position. Diagnostic Codes 5270, 5272.
Overall, the nature of the functional losses experienced by
the veteran are not such that they may be said to equate to
impairment contemplated by the highest rating assignable for
limitation of motion, particularly when his motion was
described by the March 2003 examiner as mild to moderate.
Therefore, the Board does not find any basis to justify a
higher rating for the veteran's right ankle disability under
DeLuca and 38 C.F.R. §§ 4.40, 4.45.
The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits. The
Board is unable to identify a reasonable basis for granting
an increased rating for the veteran's service-connected
residuals of a right ankle sprain. Gilbert v. Derwinski, 1
Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West
2002); 38 C.F.R. § 3.102 (2001). The Board notes that 38
C.F.R. § 3.102 was amended in August 2001, effective as of
November 9, 2000. See 66 Fed. Reg. 45,620-32 (Aug. 29,
2001). However, the change to 38 C.F.R. § 3.102 eliminated
the reference to submitting evidence to establish a well-
grounded claim and did not amend the provision as it pertains
to the weighing of evidence and applying reasonable doubt.
Accordingly, the amendment is not for application in this
case.
In deciding the issues in this case, the Board has considered
the applicability of the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096, (codified
as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002)), which became effective during the
pendency of this appeal. VA has also issued final
regulations to implement these statutory changes. See Duty
to Assist, 66 Fed. Reg. 45,620-32. (Aug. 29, 2001) (codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a)).
Under the Act, VA has a duty to notify the veteran and his
representative of any information and evidence needed to
substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103
(West 2002). There is no outstanding information or evidence
needed to substantiate a claim in this case. The veteran is
claiming an increased rating for his service-connected
residuals of a right ankle sprain. His claim has been
pending since February 1980. He has been advised of the
evidence required to warrant an increase in his disability
rating. The case was remanded in July 2000 to provide for
additional development of evidence to substantiate his claim.
Additional evidence was obtained but the veteran's claim
remained denied. There is no additional information or
evidence needed to complete his claim.
Under 38 U.S.C.A. § 5103, the Secretary is required to
provide certain notices when in receipt of a complete or
substantially complete application. The purpose of the first
notice is to advise the claimant of any information, or any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. The
Secretary is to advise the claimant of the information and
evidence that is to be provided by the claimant and that,
which is to be provided by the Secretary. 38 U.S.C.A. §
5103(a) (West 2002). In those cases where notice is provided
to the claimant, notice is to be provided to advise that, if
such information or evidence is not received within one year
from the date of such notification, no benefit may be paid or
furnished by reason of the claimant's application. 38
U.S.C.A. § 5103(b) (West 2002). In addition, 38 C.F.R. §
3.159(b) (2002), details the procedures by which VA will
carry out its duty to assist by way of providing notice.
The claim has been under development and consideration since
February 1980. The veteran was initially denied an increased
rating for his right ankle disability in June 1980. The
veteran expressed his disagreement with the denial and was
issued a statement of the case in November 1980 that provided
notice of what the veteran needed to show to warrant the
assignment of an increased rating for his right ankle
disability.
The veteran testified at a hearing at the RO in April 1981.
A new VA examination was ordered for the veteran to provide
updated information regarding the veteran's disability;
however, the veteran failed to complete the examination.
Unfortunately his claim was not forwarded to the Board at
that time for appellate review. It remained at the RO until
1996 when the appeal was again addressed.
The RO provided the veteran with a VA examination in June
1997. Based on the examination results the veteran's
disability rating was increased to 10 percent in January
1998. The veteran was given notice of the rating action in
June 1998. The rating decision provided notice of the
criteria to satisfy in order to justify a further increase in
the veteran's disability rating. An August 1998 supplemental
statement of the case (SSOC), issued in August 1998, also
provided the same information.
The Board remanded the veteran's case for additional
development in July 2000. The remand informed the veteran
that he could supplement the record with any pertinent
evidence or information. The RO wrote to the veteran in
August 2000 and asked that he identify any outstanding
evidence that could be obtained on his behalf. There is no
indication in the claims file that the veteran responded to
the RO's request.
The veteran was afforded a VA examination in March 2003. His
claim remained denied and he was informed of the denial, and
the evidence needed to warrant an increased rating, by way of
a supplemental statement of the case issued in March 2003.
In reviewing the requirements regarding notice found at 38
U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), the Board cannot
find any absence of notice in this case. As reviewed above,
the veteran has been provided notice regarding the type of
evidence needed to justify an increased rating for his
service-connected right ankle disability. While there was a
lapse in the handling of the veteran's claim, he was kept
informed of all of the evidence developed by VA. The
November 1980 statement of the case and August 1998 and March
2003 supplemental statements of the case informed the veteran
as to why the evidence added to the record did not allow for
a complete grant of his claim. In summary, the Board finds
that no additional notice is required under the provisions of
38 U.S.C.A. § 5103 as enacted by the VCAA and 38 C.F.R. §
3.159(b). See Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002).
The duty to assist claimants under the VCAA is codified under
38 U.S.C.A. § 5103A (West 2002) and established by regulation
at 38 C.F.R. § 3.159 (c)-(e) (2002). This section of the
VCAA and the regulation set forth several duties for the
Secretary in those cases where there is outstanding evidence
to be obtained and reviewed in association with a claim for
benefits.
In this case, VA and private treatment records were obtained
and associated with the claims folder. The veteran was
requested to either provide additional private treatment
records or to authorize VA to obtain them on his behalf but
he failed to respond to the request. The veteran related at
his June 1997 and March 2003 VA examinations that he had not
received any additional treatment for his right ankle
disability in the intervening years. The veteran was
afforded VA examinations to ensure the record provided
adequate evidence for the rating of his disability. The
veteran also presented testimony at a hearing at the RO in
April 1981.
The Board finds that every effort has been made to seek out
evidence helpful to the veteran. This includes specific
evidence identified by the veteran and evidence discovered
during the course of processing his claim. The Board is not
aware of any outstanding evidence. Therefore, the Board
finds that VA has complied with the spirit and the intent of
the duty-to-assist requirements found at 38 U.S.C.A. § 5103A
and 38 C.F.R. § 3.159(c)-(e).
Thus, VA has satisfied its duties to inform and assist the
veteran in this case. Further development of the claim and
further expending of VA's resources are not warranted. Cf.
Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); Dela
Cruz v. Principi, 15 Vet. App. 145, 149 (2001).
ORDER
An evaluation greater than 10 percent for residuals of a
right ankle sprain is denied.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Meanwhile,
please note these important corrections to the advice in the
form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.